Today finds me working on a motion to certify a class/collective action in an unpaid overtime case in the Federal Southern District Court of Ohio.   The issue is whether the employer's shifting of a seven day workweek, seven, twelve-hour-a-day workweek at that, over two calendar weeks, without paying any overtime, is lawful.  I say no.

Of course the employer says "Sure, it's lawful.  We can designate any period as a workweek.  Haven't you seen the regulations that say workweeks don't have to be the same as calendar weeks or pay periods?" while citing to 29 CFR 778.105.  "Look at the regulations Langendorf," they say.

I have.  I conclude differently.  The regulation that says a workweek is a seven consecutive day period is the period upon which overtime is calculated and each workweek stands alone. 29 CFR 778.104.  My clients work a seven day on, seven day off schedule repeatedly.  The employer calls it a "seven on seven off" schedule.  They don't call it a "three off, four on, three on four off"  schedule.  It's seven on seven off.  If the employees worked Sunday to Saturday, they'd get 44 hours of overtime pay. The way the employer has interpreted the workweek regs, the employees get no overtime at all.  Despite being subjected to a grueling schedule the likes of which the Fair Labor Standards Act was supposed to eliminate, BY ITS OWN TERMS.

The relevant regs have been interpreted in favor of employers, for the most part.  But this misuse, this cheap end around, needs to be changed.  I'm on it.